RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03724
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20021005	
DATE REMOVED FROM TDRL:  20060217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve O3, Field Artillery, medically separated from the Temporary Disability Retired List (TDRL) for “history of chronic back pain…” with a disability rating of 0%.

CI CONTENTION:  The CI requested consideration of all conditions. The CI’s complete submission is at Exhibit A. 

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based upon a review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB – 20020724/20060217	VARD - 20030710	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Chronic Back Pain…	5293	20%	0%	Degenerative Joint Disease L-S Spine and L5-S1 Radiculopathy	5295	20%	20%	
Fecal Incontinence	7332	10%	Not Unfitting	Fecal Incontinence	7339-7332	NSC	SC Not Compensable	
Detrusor Sphincter Dyssynergia	Not Unfitting	Voiding Dysfunction	7332	10%	10%	
COMBINED RATING:  30% → 0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain condition began in July 1999 after sustaining a motor vehicle accident (MVA).  Radiographic imaging showed early degenerative disk disease.  The MEB NARSUM examination on 22 February 2002 (8 month prior to TDRL placement) noted complaints of 7-8/10 lower back and throbbing in both of his legs.  This pain increased with sitting.  Physical examination showed full range of motion and paraspinous, left greater than right, lumbar tenderness to palpation.  At the VA Compensation and Pension (C&P) examination in January 2003, performed 3 months after TDRL placement, the CI reported lower back pain with occasional radiation down both lower extremities.  He reported the use of Percocet and amitriptyline for pain.  Physical examination showed forward flexion to 60 degrees (normal 90 degrees), extension to20 degrees (normal 30 degrees), and bilateral lateral flexion/rotation to 35 degrees (normal 45 degrees). There was pain in all planes of motion.  The neurologic examination was normal and without evidence of a radiculopathy.  

The Board directed attention to its rating recommendation based on the above evidence.  At TDRL placement the PEB assigned a 20% rating under the 5293 code (Intervertebral Disc Syndrome), citing herniated disk with diminished sensation rated as moderate.  The VA also assigned a 20% rating using the 5295 code (Lumbosacral Strain) based on the VA C&P examination 3 months after separation, citing muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  At TDRL removal the PEB assigned a 0% rating under the 5243 code (Intervertebral Disc Syndrome). Although the TDRL examination dated 15 August 2005 demonstrated 60 degrees of forward flexion, the examiner noted that the measurements were a “reasonable range of motion”.  The Board therefore placed higher probative value on the primary care examination dated 06 January 2006, 1 month prior to separation, which demonstrated tenderness to palpation of the lumbar spine.  The Board agreed that a 10% rating, but no higher, was justified for localized tenderness not resulting in abnormal gait or abnormal spinal contour. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain and decreased (left or right) lower extremity sensation from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis at TDRL placement and removal.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lower back pain condition, coded 5242.  The Board noted that the PEB coded the condition under intervertebral disc syndrome.  Board member agreed that the disability condition most closely approximated degenerative arthritis of the spine (5242).  The Board therefore recommends a change in the VASRD code to 5242.

Fecal Incontinence.  According to STR and the MEB NARSUM, the CI’s fecal incontinence condition began in October 2001.  The MEB NARSUM examination on 22 February 2002 (5 months prior to TDRL placement) noted complaints of fecal incontinence.  Physical examination genitourinary findings were recorded. A VA C&P genitourinary examination was not in evidence.

The Board directed attention to its rating recommendation based on the above evidence.  At TDRL placement the PEB assigned a 10% rating under the 7332 code (rectum and anus, impairment of sphincter control) citing frequent slight soilage; rated as constant, slight. There was no a VA rating for fecal incontinence at TDRL placement.  The CI reported fecal leakage and staining of the underwear; however, there was no reporting of involuntary bowel movements necessitating usage of pads for a 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the fecal incontinence condition at TDRL placement.  

At TDRL removal the PEB adjudicated the fecal incontinence condition was not unfitting and therefore, not rated.  A 2004 VA rating decision documented that the VA did not service connect the fecal incontinence condition.  At TDRL removal, the fecal incontinence condition was not profiled or implicated in a commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the fecal incontinence condition significantly interfered with satisfactory duty performance at TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the fecal incontinence condition at TDRL removal.  

Contended PEB Conditions: Detrusor Instability.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the lower back pain condition, the Board unanimously recommends no change in the PEB adjudication at TDRL placement.  In the matter of the lower back pain condition at TDRL removal, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the fecal incontinence condition and IAW VASRD §4.114, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and removal.  In the matter of the contended detrusor instability (urinary incontinence) condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Chronic Back Pain…	5293	20%	20%	
Fecal Incontinence	7332	10%	Not Unfitting	
RATING	30%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140423, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160017209 (PD201403724)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA